IN THE CASE OF:	  

		BOARD DATE:	        29 January 2009

		DOCKET NUMBER:  AR20080016608 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states he was very depressed at the time and was going through marital problems.  He had a hard time adjusting to the military.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  This document shows he was discharged under paragraph 5-31h(2) of Army Regulation (AR) 635-200, by reason of the “Expeditious Discharge Program, Failure to maintain acceptable standards for retention.”

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the US Army Reserve Delayed Entry Program (DEP) for 6 years on 27 March 1979.  On 24 April 1979, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 25 April 1979.  

3.  Following training at Fort Leonard Wood, Missouri and Fort Lee, Virginia, he was awarded military occupational specialty (MOS) 94B (Food Service Specialist) and transferred to Fort Benning, Georgia for his first permanent duty assignment.

4.  The applicant's records contain four records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for:

	a.  willfully disobeying a lawful order to get a haircut on 6 July 1979 for which he received a forfeiture of $100 pay per month for 2 months, and 15 days of restriction and extra duty;

	b.  willfully disobeying a lawful order to report to class on 10 July 1979 for which he received a forfeiture of $200 pay per month for 2 months, and 30 days of restriction and extra duty;

	c.  being absent without leave (AWOL) from his place of duty from 
2 September 1979 to 15 September 1979 for which he received a forfeiture of $97 pay per month for 1 month, and 7 days of restriction and extra duty.

	d.  willfully disobeying a lawful order to perform guard duty on 21 October 1979 and being disrespectful in language towards a staff sergeant on the same date for which he received 14 days of extra duty.

5.  On 27 November 1979, the applicant’s company commander notified him of his intent to discharge him under the provisions of paragraph 5-31, AR 635-200, expeditious discharge program because of his inability to adapt to military standards of good order and discipline.  The applicant acknowledged notification on the same date.

6.  The commander’s request for discharge was forwarded through the chain of command to the approving authority.  On an unknown date, the request for discharge was approved with a GD.

7.  The applicant was discharged on 21 December 1979 after serving 9 months and 14 days of his 3-year enlistment.  During that time, he received NJP four times, and he had 13 days of lost time due to being AWOL.  He received a GD.

8.  There is no evidence available to indicate the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board’s stature of limitations.

9.  AR 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Paragraph 5-31, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general or honorable discharge, as appropriate.

10.  AR 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a substandard Soldier who demonstrated a poor attitude, lack of motivation, lack of self-discipline, and an inability to adapt socially or emotionally to the Army.  Because he could not or would not meet acceptable standards of conduct, his commander recommended that he be discharged under the EDP.

2.  The applicant has provided no proof, and the record does not substantiate, that he was depressed or suffering from marital problems.  Even if true, there is no evidence the applicant attempted to resolve his problems through his chain of command, chaplain, medical facility, or other valid support mechanism.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080016608



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ABCMR Record of Proceedings (cont)                                         AR20080016608



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